Court of Appeal for Ontario

Citation: Morgado (Re), 2020 ONCA 789

Date: 2020-12-14

Docket: C68140

Judges: Rouleau, Benotto and Miller JJ.A.

In the Matter Of: Pedro Morgado

An Appeal Under Part XX.1 of the Code

Counsel: Erin Dann, for the appellant Tanya M. Kranjc, for the respondent, Attorney General of Ontario Michele Warner, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: October 23, 2020 by video conference

On appeal against the disposition of the Ontario Review Board, dated February 4, 2020, with reasons dated February 25, 2020.

REASONS FOR DECISION

[1] Pedro Morgado appeals from the February 4, 2020 disposition of the Ontario Review Board, which ordered his continued detention on the General Forensic Unit of the Centre for Addiction and Mental Health (“CAMH”) with privileges up to and including community living in accommodation approved by the person in charge. Mr. Morgado had sought a conditional discharge.

[2] On appeal, Mr. Morgado does not dispute the finding that he continues to pose a significant risk of serious harm to the public. He appeals on the basis that the disposition was not appropriate because it was not the least onerous or least restrictive disposition necessary to protect the public. He argues the Board erred in two ways: (1) by failing to consider all relevant factors under s. 672.54 of the Criminal Code; and (2) by finding that a detention order was required where that finding was not supported by the evidence.

[3] We do not agree that the Board erred and accordingly dismiss the appeal. We are, nevertheless, concerned that not enough has been done to move Mr. Morgado into appropriate community living. It is not contested that he is ready for such a move and has been for some time. We understand that Mr. Morgado is difficult to place because of the nature of the index offence, his problems controlling his anger, and his restrictive geographic demands. But there needs to be a renewed effort in working with him to generate some options for placement.

Background

[4] Mr. Morgado is 56 years old and trained as an electrician. In 2007, he was found NCR with respect to charges related to arson. He had set a fire in an elevator of the residential apartment building in which he was living. The fire necessitated the evacuation of 700 residents and caused $300,000 in damage.

[5] Although Mr. Morgado had interactions with the mental health system prior to the index offence, including a four-day admission to the Clarke Institute in 1998 due to depression, suicidal thoughts, and fantasies of killing his foreman with a hammer, he has not been diagnosed with a major mental disorder. The Board adopted the conclusions of the hospital report that Mr. Morgado “has a history of aggression when his needs are not met, or in the face of minor interpersonal conflict or perceived provocation”. He becomes aggressive when he has “feelings of being disrespected, sabotaged, or targeted”.

[6] Mr. Morgado’s behaviour in hospital has been mixed. By the fall of 2014, his treatment team began to plan for his discharge. He was offered shared accommodation, which he refused on the basis that “something bad would happen” if he lived with other people. Following some incidents of aggression in 2015, he was transferred back to the secure unit where he remained until 2018. Thereafter, he was returned to the general forensic unit and granted community passes, which he exercised without incident. He participated in therapeutic and recreational programming from February to November 2018. Although there were five reported incidents in 2019 of Mr. Morgado displaying “intense anger” towards members of the treatment team, he was otherwise typically calm and polite.

[7] In December 2019, Mr. Morgado attended job interviews while on passes and reported that he obtained a job as an electrician at a bakery, working 60 hours per week plus 20 hours of travel time. The treatment team did not approve the employment as it had insufficient information (owing, at least in part, to not receiving documentation inadvertently misdirected by Mr. Morgado) and because of concerns about the feasibility of Mr. Morgado transitioning overnight from 12 years of unemployment to a very demanding work schedule.

[8] The Board found that there was no realistic plan for release into the community. Although the treatment team continued to support community living for Mr. Morgado in approved accommodation, the Board found that Mr. Morgado “seriously underestimates the stresses of living and working in the community and his potential reaction to those stresses”. The Board accepted the position of the hospital that they need to approve and monitor Mr. Morgado’s accommodation so as to manage the risk that he poses to others in his vicinity.

Analysis

[9] As explained below, we do not agree that the Board made any of the errors alleged.

[10] Mr. Morgado argues that in arriving at its disposition, the Board failed to meaningfully consider the negative impact of the detention order on Mr. Morgado’s mental condition and on his reintegration into society.

[11] The problem identified by Mr. Morgado is that although the Board accepts that he is ready for community living – and has been for some time – the detention order itself prevents this from happening. This is because he does not qualify for the typical options for community living available to persons under a detention order. First, he does not suffer from a major mental disorder, which means that it is likely that mental health supportive housing will not accept him. Second, the index offence of arson in a residential building similarly disqualifies him from many options.

[12] We do not agree that the Board failed to consider any relevant factors in coming to its disposition, including Mr. Morgado’s mental health and the need to reintegrate him into society through community living and employment. The Board’s reasons address these issues in numerous places. The Board acknowledged the need for securing appropriate community housing for Mr. Morgado, but identified practical obstacles, including the fact that he seriously underestimates the stresses of living in the community. The Board noted that Mr. Morgado refused shared accommodation in 2014, but at his hearing proposed he be released into a shelter where the stresses would be much greater than those in the shared accommodation previously offered to him. The Board now also accepts that given Mr. Morgado’s anger control issues, it would be improvident to place him in a cooperative living situation with other people. The Board, in its reasons, exhorted the hospital “to be creative in finding accommodation that addresses the proper management of risk and but [sic] also moves Mr. Morgado forward”.

[13] Furthermore, we do not agree with Mr. Morgado’s argument that the Board erred in concluding that a conditional discharge would not adequately protect society from the risk of harm he poses. No release plan has been identified that would not put Mr. Morgado in a living situation that would risk violent confrontations with others. The Board concluded that Mr. Morgado has great difficulty in navigating the ordinary stresses of day-to-day living and working with other people. In his case, he has a propensity to react aggressively and violently to comparatively minor provocation. He presents a risk that must be managed for the safety of others. The Board gave adequate reasons for rejecting a conditional discharge, identifying, in particular, Mr. Morgado’s failure to appreciate the stresses of living and working in the community and his potential reactions to those stresses, his need for support in order to transition back into the community after 18 years, and the need to identify realistic accommodation.

[14] We conclude that the Board made no errors in its disposition and that its findings are entitled to deference. We are, however, concerned by the lack of progress towards securing the conditions necessary for Mr. Morgado to return to the community and find employment. His skills are seemingly in demand given the ease with which he obtained an offer of employment in 2019. The Board found, reasonably, that he cannot be left to judge for himself which employment and living opportunities are suitable, and that the degree of supervision required can currently only be accomplished under a detention order. Like the Board, we urge the hospital to work with Mr. Morgado to secure suitable accommodation that can hopefully become a springboard to greater reintegration into society.

Disposition

[15] The appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“B.W. Miller J.A.”